SECTIONS 42 AND 43A CIVIL LIABILITY ACT

12 Mar 2020

INTRODUCTION

In proceedings where a public authority is alleged to have acted negligently, ss 42 and 43A of the Civil Liability Act 2002 (CLA) will often be raised by the public authority as a defence to a plaintiff’s claim.

Where a public authority invokes s42 in defence of contentions that it owed a duty of care to the plaintiff or that it breached a duty of care, the section’s operation is to be considered in the context of ss5B and 5C of the CLA.

Where, however, s43A is relied upon, usually there will be first have been a finding of negligence, with the plaintiff required to then satisfy a separate, not inconsistent, statutory test.

The inter-relationship of s42, s5B and s5C, and the reach of s 43A, was recently considered in Weber v Greater Hume Shire Council [2019] NSWCA 74 (Weber). Although Basten JA in Weber set out a number of propositions that apply in the operation of s42 (read in the context of s5B and s5C), his Honour lamented the difficulties in establishing a coherent operation of s5B, 5C and s42 and raised a number of issues concerning the meaning and application of s42.

This paper discusses Weber, and its treatment of the reasoning in earlier decisions of the NSW Court of Appeal regarding s 42.

The paper also reviews the reasoning about s 43A in Weber and in an earlier decision of a differently constituted NSW Court of Appeal in McKenna v Hunter and New England Local Health District [2013] NSWCA 476.

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